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Prof Bradley Smith addresses matrimonial property and trust law complexities

29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett

In his inaugural lecture on 21 February 2024 at the University of the Free State (UFS), Prof Bradley Smith explored the complexities of trust misuse in the context of property disputes during divorce proceedings. Prof Smith is an Extraordinary Professor at the UFS Faculty of Law. Drawing on two decades of judicial evolution in the Supreme Court of Appeal (SCA), Prof Smith highlighted the inconsistencies in the SCA’s treatment of this issue that impedes attempts to curb “divorce planning” by way of a trust and proposed solutions to address them.

One of the core issues he identified is the abuse of trusts, where assets are placed within a family trust to diminish a spouse’s personal estate value while treating the trust property as personal property for personal gain. This is often done in an attempt to evade the financial consequences of divorce. Prof Smith explained that this practice undermines the essence of trust law and that the inconsistent approaches by our courts exacerbate the challenges in dividing property during divorce proceedings in a manner that respects the spouses’ matrimonial property regime.

Navigating challenges: reflections on research and its importance

Prof Smith’s proposal revolves around the development of a consolidated test for piercing the veneer of an abused trust, aiming to enhance legal certainty. He emphasised the necessity of a unified approach. “Utilising this test will ensure uniformity because of its applicability to all marriages out of community of property, irrespective of whether the accrual system is involved,” he said.

His meticulous examination of conflicting judgments was praised by Dr Brand Claassen, head of the Department of Private Law, who described it as “the work of a master craftsman”. Retired Judge of Appeal, Eric Leach, also highlighted its critical importance in clarifying complex legal issues for the public good.

“It is of critical importance and in the public interest for judicial decisions, particularly those of higher courts such as the Supreme Court of Appeal and Constitutional Court, to be subjected to careful and considered analysis and, if needs be, criticism. Prof Smith’s inaugural lecture on combating trust form abuse in the context of matrimonial property claims at divorce, in which he carefully considered and analysed the conflict between several Supreme Court of Appeal judgments, was a valuable and important study on the issue,” said Judge Leach. He added that he hoped Prof Smith’s research would be considered by the SCA in future.

Future directions: advancing discourse and sound legal theory

Looking ahead, Prof Smith envisions further research into the applicability of the consolidated test to marriages in community of property, aiming to address remaining uncertainties that lie at the intersection of matrimonial property and trust law. He emphasised the importance of countering the prevailing “catch-me-if-you-can” attitude in divorce matters, advocating for proactive measures to uphold fairness and justice in matrimonial property disputes.

In conclusion, Prof Smith’s inaugural lecture provided valuable insights into combating trust form abuse within the context of matrimonial property claims at divorce. His proposed solutions and ongoing research efforts signify a commitment to advancing discourse on trust law theory and practice, with the ultimate aim of a sound judicial approach that serves the needs of South African society.

News Archive

And the Best Managed Residence is…

2014-10-27

As examinations draw near and the end of the year is around the corner, residences want to know who the best of the best is.

During the 2014 Residence Awards on 22 October, the UFS announced their best managed residences of the year at the Bloemfontein Campus.

Wag-’n-Bietjie walked away with the spoils of the evening, winning both best managed female residence, and best managed residence overall. Armentum claimed the title of best managed male residence, while Sonnedou was named as the best managed day residence.

Further results for overall best managed residences and other categories are as follows:

Best Managed Residence
Male Residences:

Armentum
JBM Hertzog
Karee

Female Residences:

Wag-‘n-Bietjie
Roosmaryn
Soetdoring

Day Residences:

Sonnedou
Imperium
Marjolein

Overall Ranking:

Wag-‘n-Bietjie
Armentum
Roosmaryn

College

South College (Armentum, Emily Hobhouse, Marjolein, NJ vd Merwe, Villa Bravado)
East College (Arista, JBM Hertzog, Kayalami, Roosmaryn, Legatum, Sonnedou)
and North College (Madelief, Tswelopele, Vergeet-my-Nie, Veritas, Welwitschia)
Central College (Akasia, Kagiso, Karee, Soetdoring, Wag-‘n-Bietjie)
and West College (Abraham Fischer, Conlaurês, Imperium, Kestell, Outiniqua)

Environmental Affairs
Male Residences:     JBM Hertzog
Female Residences: Wag-‘n-Bietjie
Day Residences:        Sonnedou
Overall Winner:           Sonnedou

Diversity
Male Residences:                               JBM Hertzog
Female Residences:                          Akasia
Day Residences:                                Arista
Best Improved Male Residence:         Villa Bravado
Best Improved Female Residence:    Kestell
Overall winner:                                    Akasia

Executive Portfolios
Male Residences:                               Tswelopele
Female Residences:                          Wag-‘n-Bietjie
Day Residences:                                Imperium
Best Improved Male Residence:         Tswelopele
Best Improved Female Residence:    Marjolein
Overall Winner:                                   Imperium

Academics
Male Residences:                               Outeniqua
Female Residences:                          Wag-‘n-Bietjie
Day Residences:                                Imperium
Best Improved Male Residence:         Imperium
Best Improved Female Residence:    Marjolein
Overall Winner:                                   Wag-‘n-Bietjie

Finance
Male Residences:                               Armentum
Female Residences:                          Roosmaryn
Day Residences:                                Imperium
Best Improved Male Residence:         Villa Bravado
Best Improved Female Residence:    Kestell
Overall Winner:                                   Armentum

Culture
Male Residences:                               Abraham Fischer
Female Residences:                          Wag-‘n-Bietjie
Day Residences:                                Sonnedou
Best Improved Male Residence:         Armentum
Best Improved Female Residence:    Akasia
Overall Winner:                                   Wag-‘n-Bietjie

Sport
Male Campus and Day Residences:           Armentum
Female Campus and Day Residences:      Wag-‘n-Bietjie
Best Male RC Sport:                           Armentum
Best Female RC Sport:                      Sonnedou

First-Years
Male Residences:                                                       Armentum
Female Residences:                                                  Welwitschia
Day Residences:                                                        Sonnedou
Best Improved Male and Female Residence:            ConLaurês and Outeniqua
Overall Winner:                                                           Armentum

Prime
Male Residences:                               Tswelopele
Female Residences:                          Wag-‘n-Bietjie
Day Residences:                                Arista
Best Improved Male Residence:         Tswelopele
Best Improved Female Residence:    Arista
Overall Winner:                                   Tswelopele

Social
Overall Winner: Karee
Best Improved Residence: Kestell

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